R. v. Bracken, 2015 ONCJ 844

CITATION: R. v. Bracken , 2015 ONCJ 844 DATE: 2015·11·25 COURT FILE No.: 15-040561Central East Region-Newmarket ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — RICHARD BRACKEN Before Justice Peter C. West Guilty plea entered October 21, 2015 Submissions heard on October 21, 2015 Reasons for Judgment November 25, 2015 Ms. L. Thompson........................................................................................................ for the Crown Mr. J.

Ryback............................................................................................................ for the accused WEST J.: Introduction [ 1 ] On October 21, 2015, Mr. Bracken pled guilty to the following charges from May 26, 2015: assault on Lina Gallo; mischief under $5,000; 2 counts of breach of probation respecting his breaching two probation orders (September 17, 2013 and September 12, 2014) by failing to keep the peace and be of good behaviour. The Crown elected to proceed by indictment on all charges and Mr.

Bracken elected to be tried in the Ontario Court of Justice. [ 2 ] Counsel made their submissions as to sentence on October 21, 2015 and the matter was adjourned until November 25, 2015 for sentence to be imposed. It is the position of the Crown that Mr. Bracken should be sentenced to a period of incarceration of 10 months in addition to the time he had served in pre-trial custody up to October 21, 2015 (131 actual days). It is the Crown’s position this is Mr.

Bracken’s third assault of violence against a domestic partner and the principles of deterrence and denunciation require a significant sentence of imprisonment. The defence argues Mr. Bracken should receive a sentence of 9 months less credit for pre-trial custody. [ 3 ] The facts were put in through an agreed statement of facts, which was filed as Exhibit 1. The Crown also entered as Exhibit 2 a series of contact sheets of photographs of the victim, Lina Gallo. A Victim Impact Statement was also provided by the Crown and marked as Exhibit 3. Mr. Bracken’s criminal record was marked as Exhibit 4. Ms.

Gallo retained her own lawyer, Mr. A. Harnett, who wrote to the Court to express Ms. Gallo’s wishes and attitude towards Mr. Bracken, which was filed as Exhibit 5 on sentence. Factual Background [ 4 ] On May 26, 2015, Mr. Bracken was at his home in East Gwillimbury, a home which is owned by the victim, Lina Gallo. When Ms. Gallo returned home she found Mr. Bracken consuming beer. They both continued to consume beer into the evening. Over the course of five to six hours Mr. Bracken consumed approximately 12 beers. During the course of the evening Mr. Bracken and Ms. Gallo argued several times.

During the arguments Mr. Bracken grabbed Ms. Gallo and squeezed her upper body and her head very hard without her consent. He continued to squeeze her even after he knew his conduct was unwelcome and she wished for him to release her. Ms. Gallo suffered significant shortness of breath, fear for her safety and was bruised on her arms in a couple of places as depicted in Exhibit 2. The bruising is relatively minor, the largest being approximately 1 ½ cm in diameter. There were a number of photographs of Ms.

Gallo’s face in Exhibit 2; however, I am unable to identify any bruising and I was not directed to any by the Crown or defence. [ 5 ] During the arguments in their residence Mr. Bracken went into the bedroom and broke two dresser drawers on a bedside table and later broke a single drawer in the kitchen. This property belonged to Ms. Gallo and was damaged without lawful excuse. [ 6 ] At the time of the commission of these two offences Mr.

Bracken was on two probation orders, the first imposed by Justice Bourque on September 17, 2013 for a period of two years and the second probation imposed by me on September 12, 2014. A statutory term of both probation orders was that Mr. Bracken “keep the peace and be of good behaviour.” His commission of the assault

and mischief charges referred to above resulted in his fail to comply with his probation orders. [ 7 ] Further, at the time of the assaultive behaviour by Mr. Bracken he was completing a 9 month conditional sentence imposed by me on September 12, 2014. Mr. Bracken appeared before me on the Breach of Conditional Sentence allegation and admitted the breach. Mr. Bracken served the remainder of his conditional sentence in “real” jail. Consequently, Mr. Bracken served the remainder of his conditional sentence in custody from his arrest on May 26, 2015 until June 12, 2015. Background of the Offender [ 8 ] Mr.

Bracken is 35 years of age. He is single, although he had been living in a common law relationship with the complainant for several months at the time of the altercation described above. Ms. Gallo knew Mr. Bracken for just over one year and their relationship grew until she invited him to move into her home. Ms. Gallo has two children from another relationship and they all resided in her home for several months. [ 9 ] Mr.

Bracken has a lengthy criminal record, which is set out below. 2004-05-20 Fail or Refuse to Provide Sample $800 & Driving Prohibition 1 year Bradford, Ont. 2004-05-27 Drive while impaired $1000 & Driving Prohibition 1 year Newmarket, Ont. Uttering Threats $500 & Probation 12 months 2005-11-04 Assault (2 Chges) 60 days intermittent & Probation 2 Newmarket, Ont. years Uttering Threats 30 days intermittent & Probation 2 Obstruct Peace Officer years on each conc. & conc. Drive While Disqualified 2008-04-11 Assault Susp.

Sentence & Probation 3 years Newmarket (39 days pre-trial custody) 3 year s. 110 Weapons’ Prohibition Assault Susp. Sentence & Probation 3 years (28 days pre-trial custody) Fail to Comply Recognizance Susp.

Sentence & Probation 3 years Fail to Comply Probation Order on each conc. & conc. 2013-08-29 Fail to Comply Recognizance (2 Chges) 10 days + (PTC 13 days) Newmarket 2013-09-17 Assault CBH 4 mo(s) 15 day(s) (PTC credited Newmarket 1½ month) & Probation 24 month s. 110 weapons’ prohibition 10 years 2014-09-12 Assault CBH $5 fine & Probation 3 years Newmarket (45 days credit PTC + 45 days credit pursuant to R v Downes ) s. 109 weapons’ prohibition 10 years Uttering Threats 9 month conditional sentence order Breach of Probation [ 10 ] Mr.

Bracken has struggled for a number of years with a serious addiction to both alcohol and drugs. It is clear from his criminal record that his addiction to alcohol and drugs has been on-going for more than 10 years. [ 11 ] On April 17, 2014, Mr. Bracken appeared before me on charges of assault causing bodily harm respecting the manager of the Newmarket Inn; utter threats to cause death to Amanda Perrault, a former girlfriend and breach of a condition in a probation order dated September 17, 2013; namely, not to have contact with Amanda Perreault. These charges arose on March 19, 2014. Mr.

Bracken had been in pre-trial custody for 29 days and I released him, on consent of the Crown and defence, on a strict recognizance of bail requiring him to reside at his parents’ home and once a bed was available at the Booth Centre, Anchorage Program in Ottawa, a drug/alcohol treatment facility operated by the Salvation Army. Mr. Bracken remained at the Booth Centre from May 9, 2014 until September 2, 2014, just prior to my sentencing him on September 12, 2014.

I sentenced him to a suspended sentence with three years’ probation in respect of the assault causing bodily harm charge, taking into account the 29 days of pre-trial custody for which I granted 45 days of pre-trial credit. I also took into account the strict recognizance of bail he was subject to from April 17 to September 12, 2014 (almost 5 months), which included “house arrest” residing at his parents’ home when not residing as an in-patient at the Booth Centre’s Anchorage Program (I credited an additional 45 days of credit).

I further sentenced him to a 9 month conditional sentence and 3 years’ probation with respect to the uttering death threats and breach of probation. Mr. Bracken received a very positive report from the Booth Centre and appeared to be well on the way to dealing with his addition issues. [ 12 ] As part of Mr. Bracken’s conditional sentence he was required to attend before me in court and I was provided up-dated reports by his conditional sentence supervisor, which initially were very favourable. In fact, I was advised by the supervisor and Mr. Bracken and Ms. Gallo that Mr.

Bracken had been drug and alcohol free since his arrest on March 19, 2014 and was attending Narcotics and Alcoholics Anonymous meetings on a regular basis. This was during his “house arrest” portion (4 months) of his conditional sentence. Mr. Bracken was gainfully employed during the time of his conditional sentence. Unfortunately, when the “house arrest” term ended and Mr. Bracken was only subject to a curfew, he began to consume beer in his residence. It was discovered that Mr. Bracken was not remaining in his residence during his curfew, which resulted in his supervisor breaching him.

The first breach, in March 2015, was

ultimately abandoned by the Crown and Mr. Bracken resumed serving his conditional sentence. In May 2015, there was a further breachand the curfew was changed back to a “house arrest” condition (May 13 to June 12, 2015). Finally, Mr. Bracken breached his conditionalsentence order a third time, as a result of being charged with the offences from May 26, 2015 and his conditional sentence was convertedinto a straight jail sentence (May 26 to June 12, 2015). Each of Mr. Bracken’s breaches of his conditional sentence order were because ofhis consumption of alcohol; namely, beer. [13] Ms.

Gallo provided a Victim Impact Statement, which did not resile from her police statement but clearly indicated shewanted to resume cohabitation with Mr. Bracken upon his release from custody and strongly expressed her view that Mr. Bracken’sassaultive behaviour was directly related to his falling off the wagon. Ms. Gallo hired her own lawyer to represent her interests to theCrown and to the Court. A letter was filed as Exhibit 5 from Mr. Aaron Harnett, which sets out Ms. Gallo’s position respecting Mr.Bracken’s application for bail. [14] It is Ms.

Gallo’s firm belief she can play a meaningful role in assisting Mr. Bracken overcome his addiction to alcohol.She would like a no contact term with the exception of her providing written and revocable consent to Mr. Bracken’s probation officer.She blames the alcohol for Mr. Bracken’s violence towards her. She has expressed her feelings of love towards him and indicates Mr.Bracken has been a positive, responsible father to her children. [15] I was advised by Mr. Ryback, as well as Mr. Bracken himself, that Mr.

Bracken has not consumed any illicit substancessince his arrest on March 19, 2014 for the charges that I sentenced him on September 12, 2014. Mr. Bracken further advised me hethought his consumption of beer would not cause him any difficulties and that he would be able to drink beer responsibly. Unfortunately,this was not born out and he told me he now recognizes the foolishness of this decision. Mr. Bracken admitted he is an alcoholic andindicated he now knows he cannot consume any form of alcoholic beverage. Mr. Ryback submitted Mr.

Bracken is in need of furtheralcohol treatment and indicated he had contacted Vita Nova, an alcohol/drug treatment facility in York Region where a bed would beavailable for Mr. Bracken to commence a 21-day in-patient treatment program. I will deal with this submission later in my reasons forsentence. Aggravating Circumstances [16]

Section 718.2(a)(ii) provides that where an offender commits an offence by abusing his/her spouse or common-lawpartner this is deemed to be an aggravating circumstance. Further, it is my view it is an aggravating factor when the assaultive behaviourtook place in the family home where the complainant should have been free from harm or violence.

Section 718.2(a)(iii) provides wherethe offender commits an offence which abuses a position of trust or authority in relation to the victim, in this case as a common-lawpartner in their shared home, is an aggravating circumstance. [17] Mr. Bracken has a related criminal record where he has been convicted on three previous occasions of domestic violencein respect of his common-law partners. I was not provided the details surrounding the previous incident of domestic assault, whichoccurred prior to the March 19, 2014 charges on which I sentenced Mr. Bracken.

I do know from the facts provided respecting theassault causing bodily harm in March 2014 that Mr. Bracken head butted the hotel manager and fractured the manager’s nose. Theuttering death threats charge was in respect of his ex-common law spouse, A. Perreault who was staying at the hotel. The previousincident of assault causing bodily harm, in September 2013 before Justice Bourque, involved Ms. Perreault. In all cases, Mr. Brackenwas under the influence of alcohol and/or illicit substances. I agree with the Crown’s position it is a serious aggravating circumstancethat Mr.

Bracken has been convicted of three previous incidents of domestic violence. [18] It is also an aggravating circumstance that Mr. Bracken was on two probation orders at the time of the commission ofthese offences and was completing the last month of the nine month conditional I sentenced him to on September 12, 2014. As I haveindicated his breach of the conditional sentence has already been dealt with.

Appropriate Sentence [19] The determination of a proper sentence in this case calls for a consideration and balancing of the principles of sentencingset out in ss. 718 to 718.2 of the Criminal Code, as well as the aggravating and mitigating factors which exist in this case. I have set outabove the various mitigating and aggravating factors which I must consider in determining an appropriate sentence. [20] There is no doubt that domestic violence is a serious recurring social problem in Canadian society.

A five-member panelof the Ontario Court of Appeal addressed the prevalence of domestic violence in the case of R. v. Inwood (1989), (ONCA), 48 C.C.C. (3d) 173 (Ont. C.A.). Chief Justice Howland made these comments concerning domestic violence, which are equallyapplicable today (at p. 181): This court has acted on the principle that where there is a serious offence involving violence to the person, then general and individualdeterrence must be the paramount considerations in sentencing in order to protect the public.

In my opinion, this principle is applicablenot only to violence between strangers but also to domestic violence. Domestic assaults are not private matters, and spouses are entitledto protection from violence just as strangers are. This does not mean in every instance of domestic violence a custodial sentence shouldbe imposed, but that it should be normal where significant bodily harm has been inflicted, in order to repudiate and denounce suchconduct.

I am pointing out later that battered wives, where there are persistent or prolonged assaults, may require specialconsideration in determining the appropriate punishment. [Emphasis added] [21] It is clear from the caselaw that when sentencing an offender for a crime of domestic violence a judge must emphasize theprinciples of denunciation, general and specific deterrence: see Regina v. Pitkeathly (1994), (ON CA), 29 C.R. (4th)182 (Ont. C.A.), Regina v. Boucher (2004), (ON CA), 186 C.C.C. (3d) 479 (Ont. C.A.), Regina v. Edwards and Levo(1996), (ON CA), 105 C.C.C. (3d) 21 (Ont. C.A.), Regina v.

Campbell (2003), (ON CA), 170O.A.C. 282 (C.A.), and Regina v. Denkers (1994), (ON CA), 69 O.A.C. 391 (C.A.). [22] Any sentence imposed should promote a sense of responsibility in the offender and an acknowledgement of the harmdone to the victim. Mr. Bracken has demonstrated remorse for his actions and he has accepted responsibility for the harm he caused to

Ms. Gallo. [23] I have set out above the aggravating factors surrounding Mr. Bracken’s offences and it is my view that assaultivebehaviour, in a domestic context, requires a custodial sentence in order to reflect the required denunciation of the offence and to addressthe principal of general deterrence, which plays a significant role in sentencing of cases involving domestic abuse. Further, the principleof specific deterrence is an important consideration on the facts of this case given that Mr. Bracken has a criminal record for domesticrelated offences.

I am also mindful that any sentence imposed must be proportionate to the gravity of the offences and the degree ofresponsibility of the offender. [24] Pursuant to s. 718.2(b), it is clear a sentencing court must be mindful of similar sentences in similar circumstances. Notwo cases involving domestic violence will be identical in terms of the underlying circumstances or the background of the offender. Ihave reviewed a number of other sentencing decisions which delineate the sentencing principles to be applied: R. v. Chirimar, 2007ONCJ 385 , [2007] O.J. No. 3323 (Ont. C. J., Trotter, J., as he then was); R. v.

Rooplall, [2008] O.J. No. 3514 (Ont. C.J.); R. v.Harding, [2009] O.J. No. 682 (Ont. S.C.J.); R. v. Markotic, [2007] O.J. No. 860 (Ont. C.J.); and R. v. Shunmuganathan, [2008] O.J. No.991 (Ont. C.J.). What is clear is that the determination of an appropriate sentence must be based upon the unique circumstancessurrounding the offence and the offender. [25] On October 21, 2015, the Crown submitted a sentence of 10 months in addition to the time Mr. Bracken had spent in pre-trial custody (131 days x 1.5 = 197 days’ credit).

I indicated to the Crown during submissions it was my view a sentence of 16 ½ monthswas well outside the appropriate range of sentence having regard to Mr. Bracken’s personal circumstances and the nature and gravity ofthe offences he pled guilty to. The facts surrounding the assault charge are relatively minor. During an argument, Mr. Bracken grabbedMs. Gallo’s upper arms and squeezed causing a couple of small bruises as depicted in Exhibit 2. He damaged two drawers of a bedsidetable in the bedroom and a drawer in the kitchen.

No value was provided for the damage, nor was any restitution sought by the Crown.As a result of committing these offences Mr. Bracken breached his two probation orders by failing to keep the peace and be of goodbehaviour. It is clear from the facts and from Ms. Gallo’s Victim Impact Statement that she was frightened by Mr. Bracken’s conduct.She indicated in her VIS she recognized Mr. Bracken needed further treatment and counselling for his addiction to alcohol and shebelieved calling the police would bring this reality home to Mr.

Bracken. [26] It is my view a custodial sentence of eight to nine months is the appropriate sentence for the domestic violence engagedin by Mr. Bracken towards Ms. Gallo. In my opinion such a sentence will address the paramount principles of general and specificdeterrence and denunciation. This is a significant period of incarceration given the nature and gravity of the behaviour engaged in by Mr.Bracken. It is also my view a three-year probationary term with conditions will address the need for rehabilitation and protection of thepublic. [27] Mr.

Bracken has spent 166 days in pre-trial custody since the end of his conditional se3ntence on June 12, 2015. Havingregard to R. v. Summers, 2014 SCC 26 , [2014] S.C.J. No. 26 (S.C.C.), Mr. Bracken is entitled to receive a 1.5 to 1 credit,pursuant to s. 719(3.1) of the Criminal Code, which would mean he has a credit of 249 days of pre-trial custody. This is the equivalent ofslightly more than eight months of pre-trial custody. [28] Consequently, in respect of the domestic violence charges relating to Ms.

Gallo; namely, assault and mischief under$5000 and the two breach of probation charges, it is my view, having regard to the mitigating and aggravating factors that I haveoutlined, a sentence of eight months incarceration is the appropriate sentence. I do not see any benefit in having Mr. Bracken remain incustody for a further month. Having regard to the pre-trial custody you have served since June 12, 2015, the appropriate sentencetherefore is a suspended sentence and probation for three years with terms as warranted in this case.

The information will reflect 166days of pre-trial custody, which on a 1.5 to 1 basis provides for 249 days of pre-trial credit, which I have taken into consideration. [29] As I referred to above, Ms. Gallo did provide a Victim Impact Statement, which reflected her desire to resumecohabitation with Mr. Bracken. The Crown expressed serious concerns for Ms. Gallo’s safety if Mr. Bracken was permitted to resumeliving with her. At the present time I am in agreement with the Crown’s submission. Mr.

Bracken needs to commence further treatmentand counselling respecting his addiction to alcohol as well as any underlying issues that may be contributing to his lack of success indealing with his addiction. [30] Mr. Bracken, if you would stand please. [31] The terms of your three years of probation are as follows. The statutory terms are: (

i) Keep the peace and be of good behaviour; (ii) Appear before the court when required to do so by the court; (iii) Notify the court or the probation officer in advance of any change of name or address; and (iv) Promptly notify the court or probation officer of any change of employment or occupation. [32] You will also abide by the following additional conditions: (

i) You will report to probation and thereafter as required; (ii) You will reside at an address approved by your probation officer; (iii) You will not associate or communicate, directly or indirectly, with Lina Gallo, except through counsel;

(iv) You will not attend within 100 meters of any known place of residence, employment or education of Lina Gallo, except on one occasion, in the company of a York Regional Police officer, to retrieve your personal belongings; (

v) You will abstain absolutely from the use, possession and consumption of all alcoholic beverages and non-medically prescribed drugs; (vi) You will attend for such assessment and/or continue such counselling for alcohol abuse, anger management, domestic violence or any other reason as your probation officer may direct and not stop that counselling without the permission of your probation officer, such counselling could include the PAR program; (vii) You will sign any release of medical, psychiatric or other confidential information to your doctor/counsellor in favour of your probation officer so that they can discuss your progress; (viii) You will not possess any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, according to law; and (vix) You are not to possess any weapons as defined by the Criminal Code . (

x) You are to attend on January 26, 2016 in courtroom 202 at 9 a.m. to be traversed to the court I am sitting in. [ 33 ] As I indicated to you on the last appearance Mr. Bracken, it is my view there are continuing underlying issues which are unresolved, and you have not addressed previously in your counselling and treatment. Mr. Ryback indicated, on your instructions, he contacted Vita Nova, a treatment facility in York Region, and he advised there would very likely be a bed available for their 21 day in- patient program upon your release from custody.

This would certainly be a good start or refresher, given your lengthy involvement with the Salvation Army’s Anchorage program in Ottawa. I can indicate, subject to your probation officer’s input and recommendations, I am open to varying the terms of your probation respecting whether you can have contact with Ms. Gallo in the future. When you attend before me in January, I will be interested in seeing what steps you have taken to address the issues I have indicated so as to alleviate the concerns expressed by the Crown and myself for Ms.

Gallo’s safety. [ 34 ] There will be a weapons’ prohibition order, pursuant to s. 110 of the Criminal Code , prohibiting you from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for 5 years. [ 35 ] Further, I am ordering the taking of samples of bodily substances from you that are reasonably required for the purpose of forensic DNA analysis pursuant to s. 487.051(3). My understanding is that if a sample of your DNA was already taken pursuant to your previous convictions that a further sample will not be taken.

Released: November 25, 2015 Signed: “Justice Peter C. West”